People v. Zambuto

73 A.D.2d 828, 423 N.Y.S.2d 770, 1979 N.Y. App. Div. LEXIS 14717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1979
• Status: Published

Opinions

Judgment modified and, as modified, affirmed, in accordance with the following memorandum: Defendant was convicted after a trial before the court without a jury of receiving unlawful gratuities (Penal Law, § 200.35) and of a violation of subdivision 5 of section 73 of the Public Officers Law which makes it a misdemeanor for a public official to accept a gift having a value greater than $25 "under circumstances in which it could reasonably be inferred that the gift was intended to influence him * * * in the performance of his official duties”. He was sentenced to a six-month term of imprisonment for each conviction, the sentences to run concurrently. The evidence does not support the finding of guilt for receiving unlawful gratuities (Penal Law, § 200.35). That conviction is reversed and the count dismissed. As the senior area representative of the State Board of Social Welfare, defendant had supervisory duties in connection with a private proprietary home for adults (PPHA) known as Parkside Manor and owned by Dygert. Defendant accepted benefits from Dygert chiefly in the form of repairs and improvements on his home. The record establishes that defendant gave Dygert substantial and unusual personal assistance, rendered mostly after hours and on weekends and holidays, and extending over a period of more than one year, including finding and negotiating with prospective lessees and administrators for the PPHA on Dygert’s behalf and extensive promotional and counseling services in connection with the opening and staffing of the facility. The overwhelming proof is that such services were not part of defendant’s official duties which were to supervise "institutions providing care for adults, to assure compliance with provisions of the Social Welfare Law and with administrative rules and policies relating to standards of care.” There is no proof from which the court could conclude that the gratuities were given for or in anticipation of any actions of defendant in his official role as an administrator charged with the responsibility of supervising, inspecting and licensing Dygert’s PPHA. Thus, the People failed to prove that the services for which the benefits were received were performed by defendant in his official capacity or that the services were "official conduct which he was required or authorized to perform” (Penal Law, § 200.35). We affirm the conviction for violation of subdivision 5 of section 73 of the Public Officers Law. Despite the lack of proof that the gifts were intended to influence defendant in the performance of his official duties, the court properly concluded, because of defendant’s relationship to Dygert, that the acceptance was "under circumstances in which it could be reasonably inferred” (Public Officers Law, § 73, subd 5; emphasis added) that the gifts were made for an improper purpose. In view of the reversal of defendant’s conviction for receiving unlawful gratuities, defendant’s six-month sentence of imprisonment for violation of the Public Officers Law should be modified to a fine of $1,000 as a matter of discretion in the interest of justice (CPL 470.15, subd 6). All concur, except Simons, J., who dissents in part, in the following memorandum.